1. Under K.S.A. 1999 Supp. 60-2403(d), if a renewal affidavit is not filed or if execution is
not issued within 10 years from the date of the entry of any judgment of restitution in
any court of record in this state, the judgment, including court costs and fees therein,
shall become dormant.

2. It is a fundamental rule of statutory construction, to which all other rules are
subordinate, that the intent of the legislature governs if that intent can be ascertained.

3. The legislature extended the time for criminal restitution judgments to remain active
beyond regular civil judgments but did not change the need for the filing of executions
and revivors to keep a judgment alive. It made no exception for cases where payments
were being made.

PIERRON, J.: Lewis D. Morrison appeals the trial court's decision setting aside a
release of a restitution order entered against him in a criminal case 12 years ago. Morrison
argues the trial court erred in holding his regular payments were sufficient to toll the
dormancy of the judgment.

On April 30, 1985, Morrison was convicted of two counts of arson. He was sentenced
to concurrent terms of 5 to 10 years' incarceration and ordered to pay $63,737 in restitution
as a condition of early release or parole. On April 11, 1986, Morrison was paroled for the
balance of his sentence and placed on probation for 5 years. A condition of Morrison's
probation was that he pay restitution. On February 4, 1987, the court entered a restitution
order for $63,737 and also detailed how Morrison's restitution payments would be scheduled.

On April 4, 1991, the district court entered an order extending Morrison's probation
for an additional 5-year period. In February 1996, the court entered a journal entry granting
the State's motion for citation for criminal indirect contempt. The journal entry provides
that Morrison agreed to pay $100 per month until the balance of his restitution was paid in
full. It also states that Morrison's probation was terminated.

Morrison made the court-ordered payments on his restitution order until February 5,
1999, when he filed a motion entitled: "Release of Restitution Order Pursuant to K.S.A.
60-2403(d)." Morrison claimed the State had not filed a revivor of the judgment and no
execution or garnishment had ever been issued. Morrison argued the restitution order
became dormant on February 4, 1997, and had remained dormant for the required 2-year
period, and he was entitled to release of the judgment. The district court granted Morrison's
request and released the judgment.

The State filed a motion to set aside the release of the restitution order on the basis
that Morrison had been making regular payments. After an evidentiary hearing, the district
court agreed with the State and found the judgment against Morrison was not dormant
because he had made monthly restitution payments as ordered by the court. The district
court reinstated the earlier court order requiring Morrison to make monthly payments of
$100.

Morrison contends the district court was correct when it initially found he was
entitled to release of the judgment under K.S.A. 1999 Supp. 60-2403(d). He argues the district
court erroneously revoked its order by holding that his partial payments tolled the dormancy
of the judgment. Morrison indicates the State never filed a renewal affidavit or issued
execution on the restitution judgment during the 10 years following issuance of the
restitution order or during the 2 years following the 10-year period when the judgment was
considered dormant. As a result, he argues, he is entitled to release of the judgment.

On the other hand, the State argues the payment of restitution in a criminal case is not
only governed by the civil procedure statutes in Chapter 60, but also the more specific
criminal statutes in Chapter 21. The State contends the criminal statutes provide for an order
of restitution in K.S.A. 1999 Supp. 21-4610(d)(1) and also provide in K.S.A. 1999 Supp.
21-4611(c)(5) for extension of a defendant's probation period for as long as there is unpaid
restitution. The State maintains Morrison's interpretation of this case would allow a
defendant to terminate his or her own probation period by filing for a civil release of
judgment concurrent with stopping a regular pattern of payments.

No Kansas cases have interpreted K.S.A. 1999 Supp. 60-2403(d), which was added by
the Kansas Legislature in 1995. That year, the legislature amended several statutes concerning
criminal restitution. K.S.A. 21-4603d(a) was amended to provide for the mandatory payment
of restitution as additional punishment:

"In addition to or in lieu of any of the above [criminal dispositions], the court
shall order the
defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by
the
defendant's crime, unless the court finds compelling circumstances which would render a plan of
restitution unworkable." (Emphasis added.)

"Crime victims too often are without any financial resources to assist in the
restoring of property,
medical bills, [lost] wages, etc., that they face after a crime. The offender should be held
accountable
for those losses and the court should not only order restitution but hold the offender accountable
to
pay the restitution. Mandatory restitution is another tool in which offenders can learn they are
personally responsible and accountable for their acts."

The impetus of the 1995 restitution amendments was to make restitution orders more
meaningful, enforceable, and collectable. To assist in the collection of the now mandatory
restitution orders, the legislature converted all criminal restitution orders into civil
judgments. The legislature added K.S.A. 22-3424(d), which provided:

"If the verdict or finding is guilty, upon request of the victim or the victim's family
and before
imposing sentence, the court shall hold a hearing to establish restitution. The defendant may
waive the
right to the hearing and accept the amount of restitution as established by the court. If the court
orders
restitution to be paid to the victim or the victim's family, the order shall be enforced as a judgment
of
restitution pursuant to K.S.A. 1995 Supp. 60-4301 through 60-4304."

Another witness statement to the House Judiciary Committee indicated:

"This bill simply makes a restitution order meaningful by converting the order to a
civil judgment.
This allows a crime victim the same tools to collect on a restitution order as our civil courts allow
to a
plaintiff in a civil judgment.

"Shouldn't we provide the same mechanism for enforcement to a victim of a crime
as we do for a
victim of negligence?"

In a memorandum to the House Judiciary Committee dated February 4, 1995, Charles
E. Simmons, Secretary of the Department of Corrections, stated:

"Giving restitution orders enforceability as civil judgments is especially important in light
of
Sentencing Guidelines Act provisions which limit postrelease supervision for crimes committed
after
July 1, 1993 to either 12 or 24 months (plus earned good time credits). If the restitution is not
paid in
that time period, under current law the State has no way to enforce the restitution order. Making
restitution enforceable as a civil judgment will allow the restitution order to survive the period of
parole or postrelease supervision, thus enabling crime victims to have a longer period of time in
which
to obtain full satisfaction of the restitution order."

In allowing victims to use civil collection remedies to put some teeth in the restitution
orders, the legislature also clearly set the outer boundaries of collecting the restitution. The
legislature amended the dormancy provisions of the Kansas statutes to specifically allow
restitution orders to become dormant if certain circumstances are met. K.S.A. 1999 Supp.
60-2403(d) states:

"If a renewal affidavit is not filed or if execution is not issued, within 10 years from
the date of the
entry of any judgment of restitution in any court of record in this state, the judgment, including
court
costs and fees therein shall become dormant, and shall cease to operate as a lien on the real estate
of the
judgment debtor. Except as provided in subsection (b), when a judgment becomes and remains
dormant for a period of two years, it shall be the duty of the clerk of the court to release the
judgment
of record when requested to do so."

The intent of the legislature is clear. "It is a fundamental rule of statutory
construction, to which all other rules are subordinate, that the intent of the legislature
governs if that intent can be ascertained. [Citation omitted.]" In re Marriage of
Killman, 264
Kan. 33, 42, 955 P.2d 1228 (1998). Restitution orders are subject to dormancy under K.S.A.
1999 Supp. 60-2403(d).

The law in Kansas concerning the dormancy of judgments is well established.
Although no cases have interpreted K.S.A. 1999 Supp. 60-2403(d), the interpretations of the
general dormancy provisions in K.S.A. 1999 Supp. 60-2403(a)(1) are equally applicable. The
dormancy period for a general judgment is 5 years. K.S.A. 1999 Supp. 60-2403(a)(1). The
court in Long v. Brooks, 6 Kan. App. 2d 963, 966, 636 P.2d 242 (1981), gave the
following
summary:

"The questions relating to the dormancy and extinguishment of Kansas judgments,
presented by this
appeal, were effectively determined by this court in Clark v. Glazer, 4 Kan. App. 2d
658, 609 P.2d 1177
(1980). In that case we said that, pursuant to K.S.A. 60-2403, judgments grow dormant in five
years, if
not enforced by execution, garnishment or proceeding in aid of execution; and, if not revived, as
provided in K.S.A. 60-2404, such dormant judgments become absolutely extinguished and
unenforceable two years thereafter. Glazer makes plain that nothing
other than revivor under K.S.A.
60-2404 can serve to revitalize a dormant judgment and that, once the period for revivor passes,
there is
absolutely nothing left of that judgment to which even 'equitable principles could be applied.' 4
Kan.
App. 2d at 661. A review of K.S.A. 60-2404 reveals that revivor of dormant judgments can
only be
accomplished by a combination of (1) a motion for revivor, coupled with (2) a request for the
immediate issuance of an execution, garnishment or attachment. Accordingly, we are obliged to
conclude, again contrary to the result reached below, that, in the case at bar, neither Richard's
affidavit
in contempt (filed in the sixth year following the entry of the judgment) nor Bonnie's failure to
raise
the dormancy of the judgment in the original contempt proceeding (held in the seventh year of the
dormant and unrevived judgment) were sufficient to revive the judgment contained in the divorce
decree."

The court in Riney v. Riney, 205 Kan. 671, 680, 473 P.2d 77 (1970), also
gave the
following interpretation:

"Under K.S.A. 60-2403 and 60-2404 a party may, by the issuance of executions
every five years,
keep a judgment alive indefinitely. The judgment remains in force without execution for five
years,
and the plaintiff may revive it at any time within two years if it has become dormant thereafter, so
that
practically a plaintiff may neglect his judgment for seven years, lacking a day, and then revive and
put
it in force for five years more. [Citation omitted.]"

Kansas law is also equally clear on the effect of partial payments as affecting the
dormancy of a judgment. In Dallas v. Dallas, 236 Kan. 92, 93, 689 P.2d 1184
(1984), the court
considered the application of 60-2403 to child support payments. For over 10 years, the
father in Dallas failed to make his full child support payment. The father
argued, and the
Dallas court agreed, that all underpaid payments within the 5 years following each of
the
child support payments were dormant judgments. Policy arguments very similar to those in
the case at bar were made in Dallas:

"Appellant [mother] first argues it is against public policy to apply the dormant
judgment statute to
underpayments of child support. She then cites cases pertaining to the statute of limitations.
These
cases, as well as K.S.A. 60-520 provide that partial payment by a debtor will toll the statute of
limitations. The statute of limitations however, is not at issue here; rather, the dormant
judgment
statute, K.S.A. 60-2403, is controlling. It provides:

'If execution, including any garnishment proceeding and any proceeding in aid of
execution,
shall not be sued out within five (5) years from the date of any judgment, including
judgments
in favor of the state or any municipality in the state, that has been or may hereafter be
rendered, in any court of record in this state, or within five (5) years from the date of any
order reviving such judgment, or if five (5) years have intervened between the date of the last
execution issued on such judgment and the time of suing out another writ of execution
thereon, such judgment, including court costs and fees therein shall become dormant, and shall
cease to operate as a lien on the estate of the judgment debtor.' (Emphasis added.)

"We note this statute speaks of 'all judgments' making no exception for child
support judgments.
It makes no provision for partial payments tolling dormancy. Only the issuance of execution or
garnishment will toll the dormancy statute. See First National Bank v. Harper, 161
Kan. 536, 169 P.2d
844 (1946). Appellant did not seek execution or garnishment until January 21, 1980, thus the
judgments for unpaid child support due more than five years before that date are dormant." 236
Kan. at
94.

K.S.A. 1999 Supp. 60-2403(d) provides that "any judgment of restitution" in which a
renewal affidavit is not filed or execution is not issued within 10 years is considered dormant.
A restitution judgment that is dormant is not void; it may be revived and have the same force
and effect as if it had not become dormant. K.S.A. 60-2404. K.S.A. 1999 Supp. 60-2403(d)
makes no provision for partial payments tolling dormancy. If a restitution judgment has
remained dormant for the specified period of time, 2 years, it becomes absolutely
extinguished and unenforceable.

The legislature extended the time for criminal restitution judgments to be active
beyond regular civil judgments but did not change the need for the filing of executions and
revivors to keep a judgment alive. It made no exception for cases where payments were being
made. The legislature could modify the law to do so, but has not.

We find the district court erred in setting aside its previous order releasing Morrison
of the judgment of restitution.